Thursday,
June 5, 2003
Part V
Department of
Agriculture
Forest Service
Department of the
Interior
National Environmental Policy Act
Determination Needed for Fire
Management Activities; Categorical
Exclusions; Notice
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Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Notices
DEPARTMENT OF AGRICULTURE
Forest Service
DEPARTMENT OF THE INTERIOR
RIN 0596–AB99
National Environmental Policy Act
Documentation Needed for Fire
Management Activities; Categorical
Exclusions
Forest Service, USDA, and
Department of the Interior.
ACTION: Notice of final National
Environmental Policy Act implementing
procedures.
AGENCY:
The Department of
Agriculture, Forest Service and the
Department of the Interior give notice of
revised procedures for implementing
the National Environmental Policy Act
(NEPA) and Council on Environmental
Quality (CEQ) regulations. These final
implementing procedures are being
issued in Forest Service Handbook
1909.15, Chapter 30, Section 31.2, and
Department of the Interior Manual 516
DM, Chapter 2, Appendix 1, which
describe categorical exclusions, i.e.,
categories of actions, which do not
individually or cumulatively have a
significant effect on the human
environment and therefore normally do
not require further analysis in either an
environmental assessment or an
environmental impact statement. The
revision adds two such categories of
actions to the agencies’ NEPA
procedures: (1) Hazardous fuels
reduction activities; and (2)
rehabilitation activities for lands and
infrastructure impacted by fires or fire
suppression. The Departments reviewed
the effects of over 2,500 hazardous fuel
reduction and rehabilitation projects
and concluded that these are categories
of actions which do not individually or
cumulatively have a significant effect on
the human environment. The agencies
have also conducted a review of peerreviewed scientific literature identifying
the effects of hazardous fuels reduction
activities, which is available at http://
www.fs.fed.us/emc/hfi. This
combination of reviews give the
agencies confidence that the categorical
exclusions are appropriately defined.
These two categorical exclusions will
facilitate scientifically sound, efficient,
and timely planning and
decisionmaking for the treatment of
hazardous fuels and rehabilitation of
areas so as to reduce risks to
communities and the environment
caused by severe fires.
The hazardous fuels reduction
category will apply only to activities
SUMMARY:
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identified through a collaborative
framework as described in ‘‘A
Collaborative Approach for Reducing
Wildland Fire Risks to Communities
and the Environment 10-Year
Comprehensive Strategy
Implementation Plan’’ (hereafter called
10-Year Comprehensive Strategy
Implementation Plan). An example of
the framework’s structure is available at
http://www.fireplan.gov/reports/mou/
fuelstreatment.pdf. Moreover, these
hazardous fuels reduction activities: (1)
Will not be conducted in wilderness
areas or where they would impair the
suitability of wilderness study areas for
preservation for wilderness; (2) will not
include the use of herbicides or
pesticides; (3) will not involve the
construction of new permanent roads or
other infrastructure; (4) will not include
sales of vegetative material that do not
have hazardous fuels reduction as their
primary purpose; (5) will not exceed
1,000 acres for mechanical hazardous
fuels reduction activities and will not
exceed 4,500 acres for hazardous fuels
reduction activities using fire; (6) will
only be conducted in wildland-urban
interface or in Condition Classes 2 or 3
in Fire Regime Groups I, II, or III,
outside the wildland-urban interface.
Activities carried out under the
rehabilitation category will take place
only after a wildfire. These activities
cannot use herbicides or pesticides, nor
include the construction of new
permanent roads or other infrastructure,
and they must be completed within
three years following a wildland fire.
Activities carried out under the
rehabilitation categorical exclusion will
not exceed 4,200 acres.
Activities conducted under these
categorical exclusions must be
consistent with agency and
Departmental procedures and with
applicable land and resource
management plans, and must comply
with all applicable Federal, State, and
Tribal laws for protection of the
environment. These categorical
exclusions will not apply where there
are extraordinary circumstances, such as
adverse effects on the following:
threatened and endangered species or
their designated critical habitat;
wilderness areas; inventoried roadless
areas; wetlands; impaired waters; and
archaeological, cultural, or historic sites.
In response to comments on the
proposed categorical exclusions, several
revisions were made to the original
proposal: (1) Grazing activities for the
maintenance of fuel breaks were
removed from the hazardous fuels
reduction category; (2) the hazardous
fuels reduction category was clarified to
explicitly state that a proposed action
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could only include the sale of vegetative
material where the primary purpose of
hazardous fuels reduction; (3) one of the
requirements for hazardous fuels
reduction activities was revised to state
that such activities must be identified
through a collaborative framework as
described in the 10-Year Comprehensive
Strategy Implementation Plan, rather
than be consistent with the framework;
(4) the hazardous fuels reduction
category was modified to make the list
of activities an exhaustive one instead of
illustrative; (5)) the hazardous fuels
reduction category was modified to
limit its use to wildland-urban interface
or in Condition Classes 2 or 3 in Fire
Regime Groups I, II, or III, outside the
wildland-urban interface; (6) hazardous
fuels reduction activities using fire are
limited to 4,500 acres; (7) mechanical
hazardous fuels reduction activities are
limited to 1,000 acres; (8) fire
rehabilitation activities are limited to
4,200 acres; and (9) the definition of
rehabilitation was revised to be
consistent with the National Wildland
Fire Coordinating Group interagency
definition.
The categorical
exclusions are effective June 5, 2003.
ADDRESSES: The new Forest Service
categorical exclusions are set out in
Interim Directive No. 1909.15–2003–1,
available electronically via the Internet
at http://www.fs.fed.us/im/directives.
The new Department of the Interior
categorical exclusions are set out in 516
DM, Chapter 2, Appendix 1, available
electronically via the Internet at http://
elips.doi.gov/table.cfm. Single paper
copies are available by contacting Dave
Sire, Forest Service, USDA, Ecosystem
Management Coordination Staff (Mail
Stop 1104), 1400 Independence Avenue,
SW., Washington, DC 20250–1104 or
Willie Taylor, Department of the
Interior, Office of Environmental Policy
and Compliance (Mail Stop 2342), 1849
C Street, NW., Washington, DC 20240.
Additional information and analysis can
be found at http://www.fs.fed.us/emc/
hfi.
EFFECTIVE DATE:
FOR FURTHER INFORMATION CONTACT:
Dave Sire, USDA Forest Service,
Ecosystem Management Coordination
Staff, (202) 205–2935, or Willie Taylor,
Department of the Interior, Office of
Environmental Policy and Compliance,
(202) 208–3891. Individuals who use
telecommunication devices for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at 1–800–877–8339
between 8 a.m. and 4 p.m., Eastern
Standard Time, Monday through Friday.
SUPPLEMENTARY INFORMATION: On August
22, 2002, President Bush established the
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Healthy Forest Initiative, directing the
Department of Agriculture and the
Interior and the Council on
Environmental Quality to improve
regulatory processes to ensure more
timely decisions, greater efficiency, and
better results in reducing the risk of
catastrophic wildfires by restoring forest
health.
In response to this direction, the
Departments of Agriculture and the
Interior proposed two new categorical
exclusions on December 16, 2002 (67 FR
77038). The first, addressing hazardous
fuels reduction activities, is intended to
better protect lives, communities, and
ecosystems from the risk of highintensity wildland fire. The second,
addressing rehabilitation activities, is
intended to better restore natural
resources and infrastructure after a fire.
The supplementary information section
of the notice published in December
contains comprehensive background
information on the need, development,
and rationale for these categorical
exclusions. The specific language for the
proposed categories of actions are set
out for comment in the notice was as
follows:
• Hazardous fuels reduction activities
(prescribed fire, and mechanical or
biological methods such as crushing,
piling, thinning, pruning, cutting,
chipping, mulching, grazing and
mowing) when the activity has been
identified consistent with the
framework described in ‘‘A
Collaborative Approach for Reducing
Wildland Fire Risks to Communities
and the Environment 10-Year
Comprehensive Strategy
Implementation Plan.’’ Such activities:
• Shall be conducted consistent with
agency and Departmental procedures
and land and resources management
plans; and
• Shall not be conducted in
wilderness areas or impair the
suitability of wilderness study areas for
preservation as wilderness; and
• Shall not include the use of
herbicides or pesticides or the
construction of new permanent roads or
other new permanent infrastructure.
• Activities (such as reseeding or
planting, fence construction, culvert
repair, installation of erosion control
devices, and repair of roads and trails)
necessary for the rehabilitation of
habitat, watersheds, historical,
archeological, and cultural sites and
infrastructure impacted by wildfire and/
or wildfire suppresion. Such activities:
• Shall be conducted consistent with
agency and Departmental procedures
and land and resource management
plans; and
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• Shall not include the use of
herbicides or pesticides or the
construction of new permanent roads or
other new permanent infrastructure.
Comments on the Proposal
Almost 39,000 responses in the form
of letters, postcards, faxes, and e-mail
messages were received during the
comment period. These comments came
from private citizens, elected officials,
and groups and individuals representing
businesses, private organizations, and
Federal agencies. Responses consisted
of nearly 1,900 individual letters and
over 37,000 form letters.
Public comment on the proposal
addressed a wide range of topics, many
of which were directed generally at the
President’s Healthy Forest Initiative and
hazardous fuels reduction. Many people
supported the proposal or favored
further expansion, while many other
opposed the proposal or recommended
further restrictions.
Comment: Some respondents voiced
general agreement with the proposal.
Some indicated that they think current
analysis and documentation
requirements are too burdensome and
that the proposal would provide for
more efficient management. Others
believed that the proposal had
appropriate limitations on the use of the
categorical exclusions and that the
agencies had done sufficient analysis to
include that the categories of hazardous
fuels reduction activities and fire
rehabilitation activities do not
individually or cumulatively have
significant effects. Still others agreed
that the collaboration requirements
ensure that local affected communities
will be involved.
Response: These comments were in
support of the proposal and need no
specific response. A summary of the
remainder of public comments and the
agencies’ responses follows:
Comment: Some respondents stated
that the proposal is not needed
inasmuch as current laws and policies
allow sufficient action to be taken to
lower the forest fire risk in urbanwildland interface areas. They stated
that agency policies already provide
sufficient authority of using categorical
exclusions.
Response: The Forest Service and the
land management agencies within the
Department of the Interior have various
categorical exclusions for fire
management in their NEPA procedures.
Consequently, there are inconsistencies
among agencies. Some agencies have the
ability to categorically exclude some or
all hazardous fuels reduction activities
and some of or all fire rehabilitative
activities while others cannot. For
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example, the U.S. Fish and Wildlife
Service has utilized similar categories
for fire management activities since
1997. In contrast, before the issuance of
the categories set out in this notice, a
jointly proposed Forest Service and
Bureau of Land Management (BLM)
hazardous fuels reduction activity using
prescribed fire would have required
BLM to prepare an environmental
assessment, while the Forest Service
may have categorically excluded such
an action. These final categories provide
a tool for more efficient planning of
hazardous fuels reduction and fire
rehabilitation activities. Having the
same categories available to all of these
land management agencies will
facilitate inter-agency coordination and
allow for more efficient planning and
more timely decisions across agency
jurisdictions. It will also provide greater
consistency of practice. The addition of
these categories, however, does not
represent a substantial change for some
agencies nor does it replace or prevent
the use of existing categories with
similar purposes. See ‘‘Comparision of
USDA Forest Service and Department of
the Interior Agency Categorical
Exclusions’’ at http://www.fs.fed.us/
emc./hfi.
Comment: Some respondents stated
that the proposal inappropriately adopts
a nationwide approach over a sitespecific approach and that certain
geographical regions or areas with
specific ecological characteristics
should not be included in the category.
They suggested that fire does not play
a significant role in some areas due to
high precipitation and humidity.
Suggestions included taking the
Southern Appalachian forests, national
monuments, Eastern forests, forests in
the Pacific Northwest, old growth, and
alpine forests out of these categories of
actions.
Response: Data on hazardous fuels
reduction and fire rehabilitation
activities was collected from field units
within the Forest Service, Bureau of
Land Management, Bureau of Indian
Affairs, Fish and Wildlife Service, and
National Park Service, across the United
States. Based on a review of this data,
it is the professional judgment of the
Departments that the categories of
actions identified in the hazardous fuels
reduction and fire rehabilitation
categorical exclusions do not
individually or cumulatively have
significant effects on the human
environment. The data represents a
broad spectrum of hazardous fuels
reduction activities across vegetation
types, geographic regions, and agency
jurisdictions. Indeed, it is this broad
representation of activities that leads the
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agencies to conclude that the hazardous
fuels reduction and fire rehabilitation
categories should not be restricted to
any specific geographic area, vegetation
type, or jurisdiction. Additional
information is available at http://
www.fs.fed.us/emc/hfi. The categorical
exclusion are provided as a tool to
improve planning efficiency.
The applicability of hazardous fuels
reduction activities and the level of
NEPA documentation appropriate to
any given area is a matter for informed
professional judgment on the part of the
local resource manager. The hazardous
fuels categorical exclusion has been
modified to limit its use to areas in
wildland-urban interface or in
Condition Classes 2 or 3 in Fire Regime
Groups, I, II, or III, outside the wildlandurban interface. Further, hazardous
fuels reduction actions using this
category will be identified through a
collaborative process as described in ‘‘A
Collaborative Approach for Reducing
Wildland Fire risks to communities and
the Environment 10-Year
Comprehensive Strategy
Implementation Plan’’ (hereafter called
the 10-Year comprehensive Strategy
implementation Plan). Therefore, if
hazardous fuels reduction activities are
not needed or appropriate, they are not
likely to be identified through this
process.
The rehabilitation category is to be
used only for rehabilitation of resources
and infrastructure after a wildfire, so it
is already limited to those areas
impacted by wildland fire and wildfire
suppression. Further restricting this
category to certain geographic areas may
exclude areas that, while not typically
susceptible to wildland fire, may be
subject to wildland fire because of
conditions such as extreme drought,
blow down, or insect infestation.
Moreover, the two categories will not
apply where there are extraordinary
circumstances, such as adverse effects
on the following: threatened and
endangered species or their designated
critical habitat; wilderness areas;
inventoried roadless areas; wetlands;
impaired waters; and archaeological,
cultural, or historic sites.
Comment: Some respondents stated
that the public cannot adequately
comment until they have reviewed the
results of the required Council on
Environmental Quality (CEQ)
consultation for the proposed
categorical exclusions.
Response: Pursuant to regulations at
40 CFR 1505.1 and 1507.3, the USDA
Forest Service and the Department of
the Interior consulted with CEQ during
the development of the categorical
exclusions. Prior to the publication of
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these final categorical exclusions, CEQ
provided written confirmation that
amending the Forest Service and
Department of the Interior NEPA
procedures by adding the new
categorical exclusions was in
conformity with NEPA and the CEQ
regulations.
Comment: Some respondents stated
that the agencies should have provided
addresses listing where hard copies of
information can be obtained. These
respondents said that they do not have
access to the Internet and that they have
not been able to obtain information.
Response: Two contacts and their
phone numbers were provided in the
Federal Register notice (67 FR 77038) as
sources for additional information.
Paper copies of the information were
available on request from the two
contacts.
Comment: Some respondents
questioned why the public should have
to cite specific laws, regulations, or
policies when making comments.
Response: There was no request for
the public to cite specific laws,
regulations, or policies when making
comments.
Comment: Some respondents stated
that, according to the Federal Register
notice, instructions for applying the
proposed fire management categorical
exclusions will not be issued until after
the procedures are finally established;
thus neither the agencies nor the public
can comment on how, where, and how
often these categorical exclusions will
be utilized.
Response: The only instructions not
yet produced are those providing
Department of the Interior agencies
guidance for the format and content of
memos that will document the agency’s
use of either of these two categorical
exclusions. Historically, requirements
for documenting decisions concerning
categorically excluded activities have
varied across agencies within the
Department of the Interior. The new
Department of the Interior instructions
will be consistent with existing Forest
Service requirements and provide for
standardized documentation for using
the hazardous fuels reduction and fire
rehabilitation categorical exclusions
among agencies. The Forest Service
requirements are available at http://
www.fs.fed.us/im/directives/fsh/
1990.15/1909.15,30.txt. The Department
of Interior instruction can be found at
http://www.doi.gov/oepc/esms. html.
Comment: Some respondents said
they believe that the proposal will
restrict public involvement and that
timber harvest for purposes other than
hazardous fuels reduction will be
categorically excluded.
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Response: The hazardous fuels
reduction categorical exclusion
explicitly states that it may only be used
where the primary purpose of the
project is hazardous fuels reduction.
Moreover, it is restricted to activities
identified through a collaborative
framework as described in the 10-Year
Comprehensive Strategy
Implementation Plan. As stated in the
10-Year Comprehensive Strategy
Implementation Plan, ‘‘Local level
collaboration should involve
participants with direct responsibility
for management decisions affecting
public and/or private land and
resources, fire protection
responsibilities, or good working
knowledge and interest in local
resources. Participants should include
Tribal representatives, local
representatives, local representatives
from Federal and State agencies, local
governments, landowners and other
stakeholders, and community-based
groups with a demonstrated
commitment to achieving the four goals
described in the Comprehensive
Strategy 10-Year Implementation Plan
(improve fire prevention and
suppression, reduce hazardous fuels,
restore fire-adapted ecosystems, and
promote community assistance).
Existing resource advisory committees,
watershed councils, or other
collaborative entities may serve to
achieve coordination at this level. Local
involvement, expected to be broadly
representative, is a primary source of
planning, project prioritization, and
resource allocation and coordination at
the local level.’’
This requirement supports public
involvement and collaboration, and
helps ensure a focus on reducing
wildland fire risks. Through such
collaboration, actions believed
necessary to abate the risk of highintensity wildfire will be identified.
This collaboration will, where
appropriate, seek to address conflicts
concerning alternative uses of resources
and be used by the federal agencies to
consider, as appropriate, reasonable
alternatives to recommend courses of
action. 42 U.S.C. 4332(2)(E). The
hazardous fuels reduction category will
utilize a collaborative framework as
described in the 10-Year Comprehensive
Strategy Implementation Plan even after
the ten years of the 10-Year
Comprehensive Strategy
Implementation Plan have passed. In
addition, the use of the hazardous fuels
reduction category is limited to the
reduction of fuels in the wildland-urban
interface or in Condition Classes 2 or 3
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in Fire Regime Groups I, II, or III,
outside the wildland-urban interface.
Comment: Some respondents asked
the agencies to clarify the public
involvement process for the
rehabilitation categorical exclusion.
Response: Responsible officials will
consider options for involving
potentially interested and affected
agencies, organizations, and persons in
the analysis process, commensurate
with public interest in a proposed
action, regardless of how the analysis is
documented.
Comment: Various respondents
questioned the methodology used to
gather and interpret activity information
used in the agencies’ conclusion that the
proposed category of hazardous fuels
reduction actions do not individually or
cumulatively have a significant
environmental effect on the human
environment. Some do not believe there
is sufficient evidence for this
conclusion. Others suggest various
biases are reflected in the activities
selected. Some respondents suggested
that the time period in which the data
were collected from field units was too
short to gather accurate data.
Response: To identify activities for
review, the Forest Service relied on a
national database implemented in
October 2000. The database includes
fuel hazard reduction and rehabilitation
and stabilization projects accomplished
in fiscal years 2001 and 2002. The
Forest Service reviewed 100 percent of
the completed projects in the database.
The Department of the Interior, having
comprehensive fuel hazard reduction
and rehabilitation and stabilization
project records dating back many years,
chose a 100 percent sample of projects
accomplished in fiscal year 2002 and a
10 percent random sample of projects
accomplished in fiscal years 1998
through 2001. As the request of both the
Forest Service and Department of the
Interior, field units added additional
hazardous fuels reduction and
rehabilitation projects that had not been
entered in their respective national
databases. The information request was
distributed to field units to verify and
supplement the project information
because that is the organizational level
where project information would be
readily available. Field units responded
to questions about projects for which
they had already reported
accomplishments through their agency
reporting systems. Field units
responded with over 3,000 hazardous
fuels reduction and fire rehabilitation
projects. The information supplied
included 30 different data items for each
activity, including information on
activity location and size, vegetation
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cover type, fuels treatment type,
predicted environmental effects, actual
environmental effects after activity
completion, and mitigation measures.
Over 2,400 of the projects reviewed had
some form of validation of the
environmental effects predicted, in the
form of formal monitoring, forest plan
monitoring, or personal observation.
Some of these included multiple
activities. Environmental effects
included ecological, aesthetic, historic,
cultural, economic, social, or health
effects as defined in 40 CFR 1508.8. The
agencies identified some inconsistencies
and missing information in the data
provided by the field units and followed
up with specific units for clarification.
The agencies relied on the
professional judgment of the responsible
officials concerning the significance of
environmental effects. The agencies
believe that resource specialists and
stakeholders involved in the design and
analysis of each specific on-the-ground
project were best qualified to identify
resulting environmental effects or
whether extraordinary circumstances
were present.
Comment: Some respondents
questioned the fire statistics presented
in the proposal. Some said that the fire
statistics fail to provide sufficient
information to make any conclusions
that justify the proposal.
Response: The fire statistics in the
preamble to the proposal where drawn
from the Administration’s ‘‘Healthy
Forests: An Initiative for Wildfire
Prevention and Stronger Communities’’
and ‘‘A Collaborative Approach for
Reducing Wildland Fire Risks to
Communities and the Environment 10Year Comprehensive Strategy.’’
Statistics for past fire seasons are also
available from the National Interagency
Fire Center at http://www.nifc.gov/stats.
The statistics were provided to explain
why the agencies believed the proposal
was necessary and timely. These
statistics are not a basis for evaluating
the significance of the environmental
effects of hazardous fuels reduction or
rehabilitation activities.
The proposal is focused on how the
attendant environmental analyses will
be documented. The CEQ regulations
implementing NEPA direct agencies to
reduce excessive paperwork by using
categorical exclusions to define
categories of actions which do not
individually or cumulatively have a
significant effect on the human
environment and for which, therefore,
neither an environmental assessment
nor an environmental impact statement
is required. The agencies believe that
the projects they reviewed provided
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ample information to define the two
categorical exclusions.
Comment: Some respondents believe
that the initiative is contrary to the
Roadless Area Conservation Rule which
prohibits road construction in roadless
areas unless needed to protect public
health and safety under an imminent
threat of a catastrophic event that would
cause the loss of life or property. Others
say that roadless areas should be
included in the proposed categorical
exclusions.
Response: Categorically excluded
actions must be consistent with
applicable law, regulations and policy.
The Roadless Area Conservation Rule
(36 CFR 294) prohibits certain activities
in inventoried roadless areas. Further,
Forest Service NEPA procedures
continue to require an environmental
impact statement for proposals that
would substantially alter the
undeveloped character of an inventoried
roadless area of 5,000 acres or more
(FSH 1909.15, Section 20.6(3)).
Comment: Some respondents state
that the agencies should strengthen the
proposed fire management categorical
exclusions by adding a paragraph that
specifies that they also apply in
extraordinary circumstances in either
Presidential Disaster Declaration areas,
or areas where it is demonstrated that a
high risk to human life, safety, property,
or infrastructure exists.
Response: The categorical exclusions
are based on the agencies’ conclusion
that these are categories of actions,
which do not individually or
cumulatively have a significant effect on
the human environment. The need for
emergency actionis not justification for
a categorical exclusion. CEQ regulations
provide for procedures that allow action
in emergencies when an environmental
impact statement would be required (40
CFR 1506.11).
Comment: Some respondents stated
that the agencies should modify the
initiative to specify that the proposed
fire management categorical exclusions
can be used in storm/wind damaged
forest areas.
Response: The proposed categorical
exclusion for hazardous fuels reduction
may be used in storm/wind damaged
areas as long as the criteria in the text
of the categorical exclusion are met. The
agencies do not believe that such
additional specificity is necessary.
Comment: Some respondents suggest
specific criteria to further define and
limit the proposed categories of actions,
e.g., project goals, outcomes, acreage
limitations, the number of activities
within a single watershed, and the types
of forests for which methods apply.
Some respondents state that the
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agencies should limit the size of the
proposed fire management categorical
exclusions to 40 acres or less and within
one-half mile of communities. Some
state that the agencies should limit
activity size to no more than 250 acres,
while others suggest that the agencies
should restrict removal for a specific
activity to 250,000 board feet.
Response: The categorical exclusions
are limited to activities with a specific
goal and outcome as suggested by some
respondents. Accordingly, activities
could include the sale of vegetative
material only if hazardous fuels
reduction is the primary purpose of the
activity. The hazardous fuels categorical
exclusion is limited to activities
identified through a collaborative
process as described in the 10-Year
Comprehensive Strategy
Implementation Plan. The collaborative
process will identify areas that are a
priority for treatment using the
hazardous fuels reduction categorical
exclusion.
Project data was collected from five
land management agencies across the
United States. The data represents the
spectrum of hazardous fuels reduction
and fire rehabilitation projects of
different sizes across vegetation types,
geographic regions, agency jurisdictions.
Not all projects reviewed had post
activity validation of the predicted
environmental effects. The agencies
focused on an analysis of the acreage
figures from over 2,500 hazardous fuels
reduction and rehabilitation activities
where the environmental effects were
predicted to not be significant and
where those predictions were validated.
Hazardous fuels reduction activities
using fire, ranged in size from less than
one acre to 90,000 acres. Mechanical
hazardous fuels reduction activities,
ranged in size from less than one acre
to 11,690 acres. Fire rehabilitation
activities, ranged in size from one acre
to 39,000 acres.
In response to requests fromore
specificity of limits, the agencies have
further constrained the hazardous fuels
categorical exclusion ot activities within
wildland-urban interface or in
Condition Classes 2 or 3 in Fire Regime
Groups I, II, or III, outside the wildlandurban interface.
The wildland urban interface is
defined in the Forest Service and
Department of the Interior Federal
Register notice ‘‘Urban Wildland
Interface Communities Within the
Vincinity of Federal Lands That Are at
High Risk From Wildfire’’ published
January 4, 2001 (66 FR 753), as an
‘‘interface community’’ and an
‘‘intermix community’’. For purposes of
defining these communities, a structure
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is understood to be either a residence or
a business facility, including Federal,
State, and local government facilities.
Structures do not include small
improvements such as fences and
wildlife watering devices.
The ‘‘interface community’’ exists
where structures directly abut wildland
fuels. The wildland interface
community exists where humans and
their development meet or intermix
with wildland fuel. There is a clear line
of demarcation between residential,
business, and public structures and
wildland fuels. Wildland fuels do not
generally continue into the developed
area. The development density for an
interface community is usually 3 or
more structures per acre, with shared
municipal services. Fire protection is
generally provided by a local
government fire department with the
responsibility to protect the structure
from both an interior fire and an
advancing wildland fire. An alternative
definition of the interface community
emphasizes a population density of 250
or more people per square mile.
The ‘‘intermix community’’ exists
where structures are scattered
throughout a wildland area. There is no
clear line of demarcation; wildland fuels
are continuous outside of and within
the developed area. The development
density in the intermix ranges from
structures very close together to one
structure per 40 acres. Fire protection
districts funded by various taxing
authorities normally provide life and
property fire protection and may also
have wildland fire protection
responsibilities. An alternative
definition of intermix community
emphasizes a population density of
between 28–250 people per square mile.
Based on coarse scale national data,
Fire Condition Classes measure general
wildfire risk as follows:
Condition Class 1. For the most part,
fire regimes in this Fire Condition Class
are within historical ranges. Vegetation
composition and structure are intact.
Thus, the risk of losing key ecosystem
components from the occurrence of fire
remains relatively low.
Condition Class 2. Fire regimes on
these lands have been moderately
altered from their historical range by
either increased or decreased fire
frequency. A moderate risk of losing key
ecosystem components has been
identified on these lands.
Fire Regime Groups are defined in the
10-Year Comprehensive Strategy
Implementation Plan, which is available
on a number of Web sites including
http://www.fs.fed.us/emc/hfi. A fire
regime is a generalized description of
the role fire plays in an ecosystem. It is
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characterized by fire frequency,
predictability, seasonality, intensity,
duration, scale (patch size), as well as
regularity or variability. Five
combinations of fire frequency,
expressed as fire return interval in fire
severity, are defined as Groups I through
V. Groups I and II include fire return
intervals in the 0–35 year range. Group
I includes ponderosa pine, other long
needle pine species, and dry site
Douglas-fir. Group II includes the drier
grassland types, tall grass prairie, and
some Pacific chaparral ecosystems.
Groups III and IV include fire return
intervals in the 35–100+ year range.
Group III includes interior dry site
shrub communities such as sagebrush
and chaparral ecosystems. Group IV
includes lodgepole pine and jack pine.
Group V is the long interval
(infrequent), stand replacement fire
regime and includes temperate rain
forest, boreal forest, and high elevation
conifer species.
In response to requests to consider
acreage limitations on the categorical
exclusions for hazardous fuel reduction
and fire rehabilitation activities, the
agencies reviewed the data to determine
prudential limits on the scope of these
categorical exclusions. Although the
data did not establish a relationship
between acres treated and
environmental effects, the agencies have
elected to limit the categorical exclusion
for hazardous fuels reduction activities
using fire to 4,500 acres, hazardous fuels
reduction activities using mechanical
methods up to 1,000 acres, and fire
rehabilitation activities to 4,200 acres.
These acreages are well within the range
of the data. This responds to public
concerns while maintaining the
effectiveness of the categorical
exclusions as a management tool.
Using timber volume as a limitation,
instead of acreage, does not reflect the
size of an activity inasmuch as a small
project in one part of the country may
result in as much timber volume as a
much larger project in another part of
the country. Moreover, activities in the
review that were identified as having
significant environmental effects were
not those of a particular activity,
location, or size but were identified as
having extraordinary circumstances,
which precluded the use of a categorical
exclusion.
These acreage limits for the hazardous
fuels reduction and fire rehabilitation
categories differ from those in a separate
Forest Service proposal for three
categorical exclusions for limited timber
harvest (68 FR 1026). In conducting the
review for its limited timber harvest
categories, the Forest Service selected
projects that would have qualified
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under the agency’s former Categorical
Exclusion 4, which allowed up to 1
million board feet of salvage and
250,000 board feet of merchantable
wood products. As previously
discussed, volume per acre can vary
considerably from place to place or by
treatment method. However, by limiting
timber harvests in the Forest Service’s
review for its limited timber harvest
categorical exclusions to actions limited
by a specified volume, the projects in
the review were still inherently limited
in acreage. Conversely, the activities
reviewed for the hazardous fuels
reduction and fire rehabilitation
categorical exclusions were not
constrained by a acreage or board feet
limitations. Accordingly, the acreage
limits proposed for the Forest Service’s
three limited timber harvest categorical
exclusions are smaller than the acreage
limits in these hazardous fuels and fire
rehabilitation categorical exclusions.
Since the Forest Service’s limited timber
harvest categorical exclusion data is
constrained, it is not comparable to the
hazardous fuels and fire rehabilitation
categorical exclusions data.
Comment: Some respondents stated
that the initiative contradicts the
original intent of categorical exclusions,
which is to expedite minor, routine
administrative actions. According to
these respondents, there will be more
stringent requirements for
administrative actions such as moving
and trail maintenance than for
vegetation management on hundreds of
thousands of acres of land, under this
initiative.
Response: Categorically excluded
actions include those that are minor,
routine, and administrative. Forest
Service NEPA procedures do apply the
term ‘‘routine’’ in reference to some of
the actions that are currently
categorically excluded. In addition, the
categorical exclusions are intended to
expedite actions that fit within
categories of actions that do not
individually or cumulatively have a
significant effect on the human
environment and for which, therefore,
neither an EA nor an EIS is required. In
this case, the agencies have analyzed a
substantial body of data. As the
agencies’ experience with
environmental analysis for natural
resource management activities grows, it
stands to reason that additional
categorical exclusions will be defined.
Comment: Some respondent said the
application of extraordinary
circumstances screens is insufficient
and open to abuse. Others stated a belief
that hazardous fuels reduction and fire
rehabilitation actions automatically
trigger the Department of the Interior’s
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exceptions to categorical exclusions,
including ‘‘controversy,’’ ‘‘uncertainty,’’
and ‘‘precedent for future action’’ and,
as such, cannot be categorically
excluded.
Response: When using these two
categorical exclusions, the responsible
officials will consider, on a project-byproject basis, whether or not any of the
Department of the Interior’s exceptions
and Forest Service extraordinary
circumstances apply. The responsible
official will prepare a decision memo
that will be available for public review.
Comment: Some respondents
suggested that the agencies monitor
categorically excluded hazardous fuels
and rehabilitation activities actions to
ensure that they do not have significant
environmental effects.
Response: Monitoring would take
place after the categories are established
and after they are used for a particular
action. Monitoring is not relied upon as
a basis or rationale for establishing these
categorical exclusions. Although the
data established that the covered
activities do not individually or
cumulatively have a significant effect on
the human environment, the agencies,
nevertheless, recognize the need for a
scientifically sound and consistent
approach to environmental monitoring
for both hazardous fuels reduction and
rehabilitation actions and agree that a
monitoring program should apply to a
representative sampling of those
hazardous fuels reduction and
rehabilitation projects conducted using
these new categorical exclusions.
Therefore, guidance for the
development of monitoring protocols,
one for fuels treatments and one for
rehabilitation actions, is being prepared.
It will be peer reviewed and is
scheduled for completion in May.
Monitoring protocols will be prepared
shortly thereafter. The agencies will
monitor the effects of categorically
excluded hazardous fuels reduction and
fire rehabilitation activities to assess
whether the categorical exclusions are
being applied within their prescribed
parameters and to confirm the agencies’
assessment of their individual and
cumulative environmental impacts.
Comments: Some respondents
suggested changing the categorical
exclusion language to specify that the
proposed fire management categorical
exclusions will be ‘‘guided by’’ rather
than ‘‘be consistent with’’ the 10-Year
Comprehensive Strategy
Implementation Plan. They state that
failure to implement such changes will
result in new causes for appeals and
litigation due to ‘‘inconsistency.’’
Response: The agencies have
modified the proposal to limit it to
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activities identified through a
collaborative framework as described in
the 10-Year Comprehensive Strategy
Implementation Plan. The change was
made to eliminate any confusion
concerning consistency.
Comment: Some respondents stated
the initiative’s list of routine actions
(e.g., reseeding and replanting) is
misleading inasmuch as the effects from
the listed actions are not comparable to
the effects that will be created by road
construction, skid trail and landing
construction, and timber harvest. Some
respondents also stated that phrases
such as ‘‘small combustibles,’’
‘‘overstocked stands,’’ and ‘‘brush
thinning’’ are inadequate with reference
to likely timber harvest activities under
the initiative.
Response: Reseeding and replanting
are allowed under the fire rehabilitation
category, which does not include skid
trail and landing construction, or timber
harvest. Fuel reduction activities
involving the sale of vegetative material
are allowed under the hazardous fuels
category only where the primary
purpose of the activity is hazardous
fuels reduction. Thinning brush and
overstocked stands characterize
common tasks allowed under the
hazardous fuels reduction categorical
exclusion. The phrase ‘‘small
combustibles’’ was not used in the
proposed or final text. The examples
provided in the proposal were intended
to illustrate a range of possible
activities. The text of the hazardous
fuels reduction categorical exclusion
defines the specific actions for which
each may be applied.
The agencies’ review of hazardous
fuels reduction and fire rehabilitation
projects encompassed the specific
activities included in the two
categorical exclusions. Hazardous fuels
reduction activities reviewed involved
broadcast burning and burning of piles,
and mechanical treatments consisting of
crushing, piling, thinning, pruning,
cutting chipping, mulching, and
mowing.
Comment: Some respondents assert
that the stated requirements that
activities must be consistent with land
and resource management plans is
misleading since Forest Service plans
will be categorically excluded.
Response: Forest Service NEPA
procedures do not presently provide a
categorical exclusion for amendments to
land and resource management plans.
The Forest Service may, if it implements
its proposed planning rule, identify a
category of plan decisions which do not
individually or cumulatively have a
significant effect on the human
environment and may, therefore, be
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categorically excluded from NEPA
documentation in an environmental
assessment or an environmental impact
statement. The public would have an
opportunity to review and comment on
such an amendment to the Forest
Service handbook if such a categorical
exclusion proposal is made.
It should be noted that under the
proposed Forest Service planning
regulations, new plans, plan revisions,
and amendments continue to require a
rigorous public involvement process.
Categorical exclusions apply to the level
of documentation required under CEQ’s
regulations implementing NPEA ( 40
CFR 150.4(p) and 1508.4). Any action
that is not consistent with an applicable
land and resource management plan’s
standards, guidelines, goals, and
objectives would require a plan
amendment. The Forest Service will
continue to conduct the appropriate
level of environmental analysis and
disclosure commensurate with the
significance of environmental effects,
for both land and resource management
plans and project-level planning.
Comment: Some respondents
suggested that the agencies should
clearly define such terms as ‘‘hazardous
fuels,’’ ‘‘primary purpose’’ ‘‘ecosystem
integrity,’’ and ‘‘adverse effect’’ as they
pertain to extraordinary circumstances.
Response: ‘‘Hazardous fuels’’ consist
of combustible vegetation (live or dead)
such as grass, leaves, ground litter,
plants, shrubs, and trees, that contribute
to the threat or ignition, and high fire
intensity and/or high rate of spread. The
term ‘‘primary purpose’’ is not a term of
art and has only the dictionary
definition. Synonymous phrasing is that
the ‘‘main reason’’ for the activity must
be hazardous fuels reduction.
‘‘Ecosystem integrity’’ is defined in ‘‘A
Collaborative Approach for Reducing
Wildland Fire Risks to Communities
and the Environment 10-Year
Comprehensive Strategy’’ as the
completeness of an ecosystem that at
geographic and temporal scales
maintains its characteristic diversity of
biological and physical components,
composition, structure, and function.
The use of the term ‘‘adverse effect’’ was
used in conjunction with the agencies’
descriptions of extraordinary
circumstances in their NEPA
procedures. Specific agency direction
pertinent to identifying extraordinary
circumstances may be found in Forest
Service Handbook 1909.15, section
303.3 (67 FR 54622), and Department of
the Interior Manual 516 DM 2,
Appendix 2.
Comment: Some respondents
commented that the proposal was
misleading because it stated that the
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proposed hazardous fuels reduction
categorical exclusion would not cover
timber sales that do not have hazardous
fuel reduction as their primary purpose,
but then several pages later stated that
products would be sold.
Responses: The intent of the
statement concerning timber sales was
to point out that only timber sales with
hazardous fuel reduction as their
primary purpose could be categorically
excluded under the proposal. The
categorical exclusion for hazardous
fuels reduction allows for the sale of
vegetative material as one method for
removal. The sale of vegetative material
includes all types of products from
plant material, including biomass, posts,
poles, and sawlogs. The hazardous fuels
reduction categorical exclusion has been
edited to add that activities may include
the sale of vegetative material if the
primary purpose of the activity is
hazardous fuels reduction.
Comment: Some respondents
suggested that, without NEPA analysis,
categorically excluded actions would
not consider the best available science
and managers would be unaware of
extraordinary circumstances that
preclude the use of a categorical
exclusion.
Response: The agencies have
repeatedly conducted NEPA analyses
for hazardous fuels reduction and fire
rehabilitation projects using the best
available science. Based upon the
projects reviewed for these categorical
exclusions, the agencies have concluded
that these categorical exclusions
describe categories of actions which do
not individually or cumulatively have a
significant effect on the human
environment.
Consistent with existing direction,
agencies must conduct sufficient review
to determine that no extraordinary
circumstances exist when using
categorical exclusions. This
determination includes appropriate
surveys and analyses, using the best
available science, attendant in
appropriate consultation with Tribes
and consultation with regulatory
agencies, such as those required by the
Endangered Species Act, the National
Historic Preservation Act, Clean Water
Act, and Clear Air Act.
The agencies will take the additional
measure of monitoring to determine that
these categories are being appropriately
used and to further validate the
agencies’ conclusions regarding
environmental significance.
Comment: Some respondents stated
that NEPA and other environmental
laws have served the country well for
years, and the agencies should follow
these laws in conducting fuels reduction
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efforts. Respondents suggest that if rule
changes are needed, they should be
made through Congress, not through
administrative actions.
Response: The agencies are not
changing laws or regulations. The CEQ
regulations implementing NEPA
provide for three levels of
environmental documentation:
environmental impact statements;
environmental assessments; and
categorical exclusions. The agencies are
following CEQ’s regulations, which
direct agencies to define categorical
exclusions to reduce excessive
paperwork. Activities conducted under
those categories must be consistent with
all applicable Federal, State, local, and
Tribal laws and requirements imposed
for protection of the environment.
Comment: Some respondents
indicated that there should be no
restriction on new road construction,
while others believe that no roads
should be constructed, as the absence of
roads indicates an activity is too far
from a community. Other respondents
suggested that up to one mile of lowstandard road should be allowed, while
others believed that roads should only
be constructed in rare cases.
Response: Hazardous fuels reduction
activities and rehabilitation activities
involving new permanent roads are not
included in the proposed categorical
exclusions. Proposals for activities that
involve new permanent road
construction would be analyzed and
documented in an environmental
assessment or an environmental impact
statement.
Comment: Some respondents
suggested that any road construction
should only be carried out following a
thorough environmental analysis.
Others indicated that culverts should
not be replaced or upgraded without a
watershed analysis.
Response: The categorical exclusions
provide only for construction of
temporary roads. Where temporary road
construction or culverts are being
proposed, agencies must review the
proposed action to ensure that no
extraordinary circumstances exist.
Comment: Some respondents
suggested that the categorical exclusions
should specify that temporary roads will
be constructed only where the project
ensures that they will be reclaimed/
obliterated upon activity completion.
Response: Whether temporary roads
are needed and to what extent, along
with how they are closed, reclaimed,
and/or obliterated are project-specific
decisions and therefore appropriately
decided at the project level.
Comment: Some respondents asked
the agencies to clarify the role of grazing
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in the proposal. Other respondents
suggest that the agencies should not
allow grazing to be categorically
excluded as a fuels reduction technique
because grazing removes grasses,
allowing woody vegetation to invade,
which contributes to hotter, more
intense fires.
Response: The grazing activity
included in the proposed hazardous
fuels reduction categorical exclusion, as
the sole biological method, was
intended to be limited to livestock
grazing to maintain fuelbreaks.
Subsequent review determined that only
four of the projects reviewed involved
livestock grazing for fuelbreak
maintenance. While some agencies have
effectively used livestock grazing to
maintain fuelbreaks in certain
circumstances without significant
environmental effects, the agencies
believe they have not gathered sufficient
data for its inclusion in this categorical
exclusion. The agencies will continue to
review the effects of this type of activity.
Therefore, the hazardous fuels reduction
categorical exclusion has been modified
to remove ‘‘biological’’ and ‘‘grazing’’
from the list of included activities.
Comment: Some respondents stated
that some prescribed burns have
resulted in unanticipated effects such as
burns too cool/hot to meet objectives
and increases in noxious weeds/nontarget grasses.
Response: The agencies’ review of
hazardous fuels reduction and fire
rehabilitation projects found 11 cases
where the actual results were other than
what was predicted. These cases
reported that prescribed fires burned
either cooler or hotter than anticipated.
Cooler than expected burns resulted in
less fuel being consumed by fire, and,
therefore, not completely achieving the
project’s fuel reduction objective. Hotter
than expected burns resulted in
increased scorch of tree crowns and
more tree mortality than predicted. In
some instances undesirable grass
species occupied the site after
treatment. In each of these cases,
however, the unanticipated effects were
found not to be significant.
Comment: Some respondents asked
that the categorical exclusion for
rehabilitation be modified to include,
but not be limited to, specific suggested
activities such as fire and safety hazard
tree removal, natural or mechanical soil
rehabilitation, and rehabilitation of
recreation sites.
Response: The rehabilitation
categorical exclusion does not include
removal of fire and safety hazard trees.
Removal of fire hazards is addressed in
the hazardous fuels reduction
categorical exclusion. Safety hazard
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trees associated with roads, trails,
recreation facilities, and administrative
sites may be removed as part of routine
maintenance of those facilities. Most
agencies already categorically exclude
these maintenance activities from
further analysis and documentation in
an environmental assessment or
environmental impact statement. Postfire soil rehabilitation, either natural or
mechanical, and recreation site
rehabilitation are included in the
category of actions described in the
rehabilitation categorical exclusion. The
list of examples is not exhaustive.
Comment: Some respondents
indicated a belief that the proposal for
rehabilitation is unnecessary as existing
legal frameworks provide for emergency
fire rehabilitation.
Response: In January 2003, the
Wildland Fire Leadership Council, a
cooperative, interagency organization
dedicated to achieving consistent
implementation of the goals, actions,
and policies in the National Fire Plan
and the Federal Wildland Fire
Management Policy, identified three
types of fire recovery activities:
Emergency stabilization; rehabilitation;
and restoration. Emergency stabilization
is defined as planned actions within one
year of a wildland fire to stabilize and
prevent unacceptable degradation to
natural and cultural resources, to
minimize threats to life or property
resulting from the effects of a fire, or to
repair/replace/construct physical
improvements necessary to prevent
degradation of land or resources. The
rehabilitation categorical exclusion does
not cover emergency stabilization. The
Wildland Fire Leadership Council
defines rehabilitation as ‘‘Post-fire
efforts (<3 years) to repair or improve
lands unlikely to recover to a
management approved condition from
wildland fire damage, or to repair or
replace minor facilities damaged by
fire.’’ The Wildland Fire Leadership
Council defines restoration as the
continuation of rehabilitation beyond
three years. The rehabilitation
categorical exclusion has been edited to
be consistent with the Wildland Fire
Leadership Council’s definition of
rehabilitation. The scope of fire
rehabilitation activities allowed under
the proposed categorical exclusion has
not changed as a result of this new
definition. What has changed is the time
limit of three years for completion of
those activities and a size limit of 4,200
acres.
Comment: Some respondents believe
that rehabilitation activities should
require an environmental impact
statement. Others believe that these
activities should not be carried out at
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all. They say the use of heavy
equipment generates noise, air and
water pollution, soil compaction,
vegetation and habitat changes, and
ecosystem modifications greater than
those which follow fires. Still others cite
research studies (e.g., Beschta, et al.,
1995) that report that there is generally
no ecological need to act, and that quick
actions may create new problems.
Response: The agencies have
repeatedly conducted NEPA analyses
for fire rehabilitation projects using the
best available science. Based upon
approximately 300 fire rehabilitation
projects reviewed, the agencies have
concluded that the category of activities
described do not individually or
cumulatively have a significant effect on
the human environment. When using
the rehabilitation categorical exclusion,
agencies must review the proposed
action to ascertain whether
extraordinary circumstances exist.
While the Beschta report focused on
salvage logging, there are also
statements on rehabilitation practices in
the report. This report questions, in
general, the effectiveness of installation
of hard structures and their siting on the
landscape. This report also criticizes
introduction of non-native species.
Situations such as steep slopes, drinking
water protection, and threats of invasive
species may influence the need to act in
local situations. Years of research since
the Beschta report have informed
current choices of technologies. The
utility of fire rehabilitation practices
chosen and the need for these practices
will be decided on a site-specific basis
using current knowledge and
technologies. Thus, the projects
selected, based on local scientific
expertise, will both meet the
environmental protection goals for the
projects and have no potential to
individually or cumulatively have a
significant effect on the human
environment.
Comment: Some respondents
requested that herbicide use be allowed
under the fire rehabilitation categorical
exclusion, while others oppose
herbicide use and even want an explicit
prohibition against herbicide use on
future activities that follow categorically
excluded actions.
Response: the agencies will continue
to review and analyze new information
on the effects of herbicides used for
hazardous fuel reduction. At the present
time, the agencies have elected to not
include actions involving herbicide use.
Comment: Some respondents are
concerned that 30 days was insufficient
time to review the proposed categorical
exclusions along with the other
proposals. Others criticized the release
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of the proposal during the Christmas
holidays.
Response: The agencies extended the
comment period through January 31,
2003.
Comment: Some respondents
expressed frustration with e-mail errors
near the comment period deadline.
Response: The office receiving e-mail
comments notes that many e-mail
comments were received during the
final days of the comment period. The
office receiving the e-mail comments
analyzed e-mail server performance. No
problems were identified.
Comment: Some respondents said
they do not believe that the agencies
should block e-mail originating from a
third party e-mail generator. These
respondents said that such e-mail
generators are important to groups
interested in the environment and that
such blocking prevents voices from
being heard.
Response: The Forest Service regrets
any difficulty experienced in submitting
comments. The Forest Service is
committed to electronic government and
is a participant in the Regulations.gov
project, which will allow third-party email generators to submit electronic
comments. In the meantime, the Forest
Service has provided maintainers of
public comment web pages with a
simple procedure that they can use to
keep their messages from being blocked
by the Forest Service’s spam filter. For
more information please contact Sandra
Watts, (703) 605–4695.
Comment: Some respondents stated
that agencies should accept and
consider all comments and not just
those deemed to be ‘‘original and
substantive.’’
Response: The agencies agree and
accepted and considered all comments.
Each comment was considered on its
own merits.
Comment: Some respondents said that
the 10-Year Comprehensive Strategy
Implementation Plan should have been
included with the proposal.
Response: The 10-Year
Comprehensive Strategy
Implementation Plan is available on a
number of Web sites including http://
www.fs.fed.us/emc/hfi. In addition, two
contacts were provided in the Federal
Register notice for additional
information. These contacts were
available to provide more information
on this strategy.
Comment: Some respondents
expressed a desire for public hearings to
record testimony.
Response: The agencies believe that
the public comment opportunity
provided was the most efficient means
of gathering public input for a proposal
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of this nature and that public hearings
were not necessary.
Comment: Some respondents wanted
the agencies to specify which
implementation tasks within the 10Year Comprehensive Strategy
Implementation Plan are addressed by
the proposed fire management
categorical exclusions.
Response: The categorical exclusions
contribute to the implementation task,
‘‘Assess state and federal regulatory
process governing projects and activities
done in conformance with the 10-Year
Comprehensive Strategy and
Implementation Plan and identify
measures to improve timely decisionmaking.’’ This task is under ‘‘Goal
Two—Reduce Hazardous Fuels.’’
Comment: Some respondents
suggested that the agencies should
provide opportunities for public
involvement on the initiative following
the release of the report from the
General Accounting Office on the
relationship between administrative
appeals and fuels reduction activities.
Response: Because of controversy
over whether appeals and litigation
have delayed implementation of Forest
Service hazardous fuels reduction
activities, the General Accounting Office
was requested to provide information to
Congress on the number of decisions
involving hazardous fuels reduction
activities, the number of these decisions
appealed or litigated, and the acreages
affected. The agencies did not believe
that this information would be helpful
in defining these categorical exclusions,
nor aid the public in commenting on the
agencies’ proposal.
Comment: Many respondents asked
that the agencies adhere to various laws,
executive orders, and agency policies
such as: the Endangered Species Act,
Clean Air Act, Clean Water Act,
National Forest Management Act,
Migratory Bird Treaty Act, National
Historic Preservation Act, Forest Service
Transportation System Management
Policy, Northwest Forest Plan, the
Grizzly Bear Recovery Plan, and
executive orders on management of
floodplains and wetlands, and Tribal
consultation.
Response: The agencies agree. The
level of NEPA consideration does not
affect agency responsibility to follow
applicable laws, regulations, executive
orders, and policies. For example,
categorically excluded hazardous fuels
reduction and fire rehabilitation actions
are reviewed for their potential to
impact waters listed as impaired by
State water quality agencies and for
compliance with smoke management
plans. When appropriate, the Forest
Service and the Department of the
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Interior agencies conduct appropriate
consultation with Federal, State, and
Tribal agencies for hazardous fuels and
fire rehabilitation actions. For example,
agencies must consult with Tribal
governments when an action may have
Tribal implications, even though it may
be categorically excluded from further
analysis and documentation in an
environmental assessment or
environmental impact statement.
Agencies must also review the potential
effects from these types of actions on
threatened and endangered species and
designated critical habitat and consult
as appropriate with the U.S. Fish and
Wildlife Service and the National
Oceanic and Atmospheric
Administration (NOAA), Fisheries.
Similarly, categorically excluded
actions are reviewed for potential effects
on properties protected by the National
Historic Preservation Act along with
appropriate consultation with State and
Tribal Historic Preservation Officers.
Such consultations help ensure that
cumulative effects across jurisdictions
will not be significant.
Comment: Some respondents stated
that rehabilitation work should only be
carried out in areas already consumed
by fires.
Response: The agencies agree. The
proposed and final categorical exclusion
for rehabilitation activities state that it
is for rehabilitation of habitat,
watersheds, historical, archaeological,
and cultural sites and infrastructure
damaged by wildfire and/or wildfire
suppression.
Comment: Some respondents said that
agencies should follow the 10-Year
Comprehensive Strategy
Implementation Plan and that
additional laws or regulations are not
needed.
Response: The categorical exclusions
are prepared in conformity with the law
(NEPA) and CEQ regulations. They
contribute to the implementation task
under the 10-Year Comprehensive
Strategy Implementation Plan’s ‘‘Goal
Two—Reduce Hazardous Fuels,’’ which
says, ‘‘Assess state and federal
regulatory process governing projects
and activities done in conformance with
the 10-Year Comprehensive Strategy
and Implementation Plan and identify
measures to improve timely decisionmaking.’’ In addition, the hazardous
fuels reduction categorical exclusion
will apply only to activities identified
through a collaborative framework as
described in the 10-Year Comprehensive
Strategy Implementation Plan.
Comment: Some respondents asked
that the agencies work collaboratively
with Federal and State agencies in
developing proposed activities and
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determining effects on wildlife
resources prior to approval of specific
activities.
Response: Hazardous fuels reduction
activities will be identified
collaboratively with governments and
stakeholders, through a collaborative
framework as described in 10-Year
Comprehensive Strategy
Implementation Plan.
Comment: Many respondents offered
suggestions about Forest Service and
Department of the Interior management
and funding, where and how to focus
hazardous fuels reduction efforts, the
efficacy of various hazardous fuels
treatments and post-fire rehabilitation
measures, technologies for utilization of
small-diameter trees, alternative fiber
sources, fire suppression tactics, land
acquisition, multiple-use, the
President’s Healthy Forests Initiative,
and the 10-Year Comprehensive
Strategy Implementation Plan.
Response: Respondents offered many
creative and original suggestions that
addressed issues beyond the proposal.
The agencies provided these comments
to appropriate personnel for their
consideration.
Comment: Some respondents stated
that the agencies should comply with
Executive Order 12866 by assessing the
economic costs and benefits of the
initiative. Respondents say that this
assessment should include the nonmarket costs of the initiative to
landowners, businesses, communities,
water quality, recreation, scenery, nontraditional forest products, and game.
Response: In compliance with
Executive Order 12866, the agencies
have determined that these categorical
exclusions will not have an annual
effect of $100 million or more on the
economy or adversely affect
productivity, competition, jobs, the
environment, public health or safety, or
State, Tribal, or local governments. The
economic effect expected to result from
this action is a reduction in the
administrative burden of preparing
unnecessary environmental assessments
and findings of no significant impact,
and benefits to the environment and
nearby communities as a result of
expeditious fuel reduction and post-fire
rehabilitation activities. These benefits
were not quantified due to the level of
uncertainty associated with the amount
of time saving and the number of
projects that would use these categorical
exclusions.
Conclusion
The USDA Forest Service and the
Department of the Interior find that the
categories of action defined in the
categorical exclusions presented at the
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end of this notice do not individually or
cumulatively have a significant effect on
the human environment. The agencies’
findings is first predicated on the
reasoned expert judgment of the
responsible officials who made the
original findings and determinations in
the hazardous fuels and fire
rehabilitation projects reviewed; the
resource specialists who validated the
predicted effects of the reviewed
activities through monitoring or
personal observation of the actual
effects; synthesis of peer-reviewed
scientific publications; and finally, the
agencies’ belief that the profile of the
past hazardous fuels reduction and fire
rehabilitation activities represents the
agencies’ past practices and is indicative
of the agencies’ future activities.
Regulatory Certifications
Environmental Impact
These categorical exclusions add
direction to guide field employees in the
USDA Forest Service and the
Department of the Interior regarding
procedural requirements for National
Environmental Policy Act (NEPA)
documentation for fire management
activities. The Council on
Environmental Quality does not direct
agencies to prepare a NEPA analysis or
document before establishing agency
procedures that supplement the CEQ
regulations for implementing NEPA.
Agencies are required to adopt NEPA
procedures that establish specific
criteria for, and identification of, three
classes of actions: Those that require
preparation of an environmental impact
statement; those that require preparation
of an environmental assessment; and
those that are categorically excluded
from further NEPA review (40 CFR
1507.3(b)). Categorical exclusions are
one part of those agency procedures,
and therefore establishing categorical
exclusions does not require preparation
of a NEPA analysis or document.
Agency NEPA procedures are internal
procedural guidance to assist agencies
in the fulfillment of agency
responsibilities under NEPA, but are not
the agency’s final determination of what
level of NEPA analysis is required for a
particular proposed action. The
requirements for establishing agency
NEPA procedures are set forth at 40 CFR
1505.1 and 1507.3, and the USDA Forest
Service and the Department of the
Interior have provided an opportunity
for public review and have consulted
with the Council on Environmental
Quality during the development of these
categorical exclusions. The
determination that establishing
categorical exclusions do not require
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33823
NEPA analysis and documentation has
been upheld in Heartwood, Inc. v. U.S.
Forest Service, 73 F. Supp. 2d 962, 972–
73 (S.D. Ill.1999), aff’d, 230 F.3d 947,
954–55 (7th Cir. 2000).
Regulatory Impact
These categorical exclusions have
been reviewed under Departmental
procedures and Executive Order 12866
on Regulatory Planning and Review.
The Office of Management and Budget
(OMB) has determined that this is a
significant regulatory action as defined
by Executive Order 12866. Accordingly,
this action is subject to OMB review
under Executive Order 12866 and OMB
has reviewed these categorical
exclusions at both the proposed and
final stages.
This action to add two categorical
exclusions to the agencies’ NEPA
procedures will not have an annual
effect of $100 million or more on the
economy or adversely affect
productivity, competition, jobs, the
environment, public health or safety, or
State, Tribal, or local governments. This
action may interfere with an action
taken or planned by another agency or
raise new legal or policy issues. Finally,
this action will not alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients of such
programs.
Moreover, this action has been
considered in light of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.),
and it is hereby certified that the
categorical exclusions will not have a
significant economic impact on a
substantial number of small entities as
defined by the act because it will not
impose record-keeping requirements on
them; it will not affect their competitive
position in relation to large entities; and
it will not affect their cash flow,
liquidity, or ability to remain in the
market.
Federalism
The agencies have considered these
categorical exclusions under the
requirements of Executive Order 13132,
Federalism, and have concluded that
they conform with the federalism
principles set out in this Executive
Order; will not impose any compliance
costs on the States; and will not have
substantial direct effects on the States or
the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, the
agencies have determined that no
further assessment of federalism
implications is necessary.
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Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Notices
Consultation and Coordination With
Indian Tribal Governments
significant energy action as defined in
the Executive Order.
These categorical exclusions do not
have tribal implications as defined by
Executive Order 13175, Consultation
and Coordination with Indian Tribal
Governments, and therefore advance
consultation with Tribes is not required.
Controlling Paperwork Burdens on the
Public
These categorical exclusions do not
contain any additional record keeping
or reporting requirements or other
information collection requirements as
defined in 5 CFR part 1320 that are not
already required by law or not already
approved for use, and therefore, impose
no additional paperwork burden on the
public. Accordingly, the review
provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.) and
its implementing regulations at 5 CFR
part 1320 do not apply.
No Takings Implications
These categorical exclusions have
been analyzed in accordance with the
principles and criteria contained in
Executive Order 12630, Governmental
Actions and Interference with
Constitutionally Protected Property
Rights, and it has been determined that
the proposed categorical exclusions do
not pose the risk of a taking of
Constitutionally protected private
property.
Civil Justice Reform
In accordance with Executive Order
12988, it has been determined that these
categorical exclusions do not unduly
burden the judicial system and that they
meet the requirements of sections 3(a)
and 3(b)(2) of the Order.
Unfunded Mandates
Pursuant to Title II of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
1531–1538), which the President signed
into law on March 22, 1995, the
agencies have assessed the effects of
these categorical exclusions on State,
local, and Tribal governments and the
private sector. These categorical
exclusions do not compel the
expenditure of $100 million or more by
any State, local, or Tribal government or
anyone in the private sector. Therefore,
a statement under section 202 of the act
is not required.
Energy Effects
These categorical exclusions have
been reviewed under Executive Order
13211, Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use. It has been
determined that these categorical
exclusions do not constitute a
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15:42 Jun 04, 2003
Jkt 200001
Dated: May 29, 2003.
For the Forest Service, U.S. Department of
Agriculture.
Sally D. Collins,
Associate Chief.
Dated: May 29, 2003.
For the U.S. Department of the Interior:
P. Lynn Scarlett,
Assistant Secretary—Policy, Management,
and Budget.
Categorical Exclusions
Note: The USDA Forest Service and the
Department of the Interior have issued the
categorical exclusions in their respective
NEPA procedures. The categorical exclusions
appear in Forest Service Handbook (FSH)
1909.15, Environmental Policy and
Procedures, ID 1909.15–2003–1, and
Department of the Interior Manual 516 DM,
Chapter 2, Appendix 1, Departmental
Categorical Exclusions. Reviewers who wish
to view the entire chapter 30 of FSH 1909.15
may obtain a copy electronically from the
USDA Forest Service directives page on the
World Wide Web at http://www.fs.fed.us/im/
directives/. Reviewers who wish to view the
Department of the Interior Manual 516 DM
may obtain a copy electronically from the
Department of the Interior page at http://
elips.doi.gov/table.cfm.
Following is the text of the two
categorical exclusions:
• Hazardous fuels reduction activities
using prescribed fire not to exceed 4,500
acres, and mechanical methods for
crushing, piling, thinning, pruning,
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cutting, chipping, mulching, and
mowing, not to exceed 1,000 acres. Such
activities:
• Shall be limited to areas (1) in
wildland-urban interface and (2)
Condition Classes 2 or 3 in Fire Regime
Groups I, II, or III, outside the wildlandurban interface;
• Shall be identified through a
collaborative framework as described in
‘‘A Collaborative Approach for
Reducing Wildland Fire Risks to
Communities and the Environment 10Year Comprehensive Strategy
Implementation Plan;’’
• Shall be conducted consistent with
agency and Departmental procedures
and applicable land and resource
management plans;
• Shall not be conducted in
wilderness areas or impair the
suitability of wilderness study areas for
preservation as wilderness;
• Shall not include the use of
herbicides or pesticides or the
construction of new permanent roads or
other new permanent infrastructure; and
may include the sale of vegetative
material if the primary purpose of the
activity is hazardous fuels reduction.
• Post-fire rehabilitation activities not
to exceed 4,200 acres (such as tree
planting, fence replacement, habitat
restoration, heritage site restoration,
repair of roads and trails, and repair of
damage to minor facilities such as
campgrounds) to repair or improve
lands unlikely to recover to a
management approved condition from
wildland fire damage, or to repair or
replace minor facilities damaged by fire.
Such activities:
• Shall be conducted consistent with
agency and Departmental procedures
and applicable land and resource
management plans;
• Shall not include the use of
herbicides or pesticides or the
construction of new permanent roads or
other new permanent infrastructure; and
• Shall be completed within three
years following a wildland fire.
[FR Doc. 03–14104 Filed 6–2–03; 12:53 pm]
BILLING CODE 3410–11–M; 4310–70–M
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